The Plateau-Mont-Royal borough will authorize this Thursday legal recourse for “illegal use” against the owner of 4518 to 4526 avenue Papineau, a building next to the La Tulipe cabaret, has learned Press.
Posted at 6:00 a.m.
A little over a year ago, the owner in question, Pierre-Yves Beaudoin, filed an injunction request for the performance hall to stop emitting noise exceeding the limit provided for by municipal bylaw.
A favorable response from the Superior Court to this request would result in “the unconditional closure of the premises” after nearly 20 years of activity, alerted its owner, La Tribu, in a “call for help” published in social networks in mid-December. The hearings were supposed to take place before the holidays, but they were postponed to March in the hope of a negotiated outcome.
Request authorized “in error”
However, in the summer of 2021, the borough discovered that Mr. Beaudoin had obtained a permit to develop a dwelling “contrary to the regulations”. This provides that “a room occupied for residential purposes may not be adjacent to an alcoholic beverage outlet or a performance hall”. The part of the ground floor where Mr. Beaudoin resides, which shares a party wall with La Tulipe, was once used as a warehouse.
The request for “transformation” of 4518 avenue Papineau was authorized “in error” on June 29, 2016 by the head of the division, urban planning, of the Plateau-Mont-Royal, and the head of the division, permits and inspection, of the City. from Montreal.
On August 4, the Directorate of Territorial Development and Technical Studies sent a notice to Mr. Beaudoin to stop residential use of his home within 90 days. “The owner has clearly indicated that he would continue to occupy the accommodation,” said the borough, which replied with a formal notice on December 15.
During a special meeting of the Board of Directors, this Thursday, the Plateau-Mont-Royal Legal Affairs Department will receive the green light to “initiate all required legal proceedings, including, where applicable, recourse to legal aid. ‘injunction before the Superior Court, in order to put an end to the non-conforming use of the dwelling ”.
PHOTO MARCO CAMPANOZZI, ARCHIVES THE PRESS
Luc Rabouin, mayor of the Plateau-Mont-Royal borough
We show that we are very serious in our desire to stop illegal use and ensure the protection and sustainability of La Tulipe.
Luc Rabouin, mayor of the Plateau-Mont-Royal borough, in an interview with Press
Mr. Rabouin notes that the Legal Affairs Department is “well aware of the file” and that it will take action quickly. “We want to give him the broadest possible mandate, so that he can play all the cards he deems relevant. ”
The mandate includes “the use of an injunction to force the removal of non-compliant housing, the execution of works aimed at ensuring the cohabitation of uses and compliance with urban planning regulations”.
“Null” license
Without commenting on this particular case, Jean Hétu, professor specializing in municipal law at the University of Montreal interviewed by Press, notes that “it is very clear that permits given by officials, if they are contrary to the regulations, are void”.
“If we obtain an illegal permit, the only recourse is in damages against the City vis-à-vis the fault of the official,” he continues.
On the merits of the law, whether by letters or promises, no one, neither an employee nor the mayor, can bind the municipality. The City signs as a legal person only by adopting resolutions or by-laws.
Jean Hétu, professor specializing in municipal law at the University of Montreal
Is the judicial avenue an admission of failure of discussions between the parties? According to Luc Rabouin, these can continue between lawyers. “We are open to a negotiated solution, but we will not wait,” he said.
Mr. Beaudoin’s building houses 16 resident tenants and two businesses. The owner has lived there since August 2017. He has since increased the number of verbal and written complaints against the performance hall, several resulting in the visit of the police and the issuance of noise-related tickets.
“Important cultural institution”
Following the media coverage of the La Tulipe file, located in a building constructed in 1913 and classified as heritage, Mr. Rabouin quickly expressed his support for this “important cultural institution”. “We recognize its value and we want to ensure that it stays in the Plateau,” he said. Many artists have also come to the defense of the former Variety Theater, which now hosts concerts and dance evenings.
Pierre-Yves Beaudoin, an entrepreneur who buys properties to fix them up and put them back on the rental market, made the headlines in 2016. He called on security guards to evict tenants from the “Coop sur Généreux”, located in the same building, formerly owned by actor Gilles Latulippe.
Mr. Beaudoin “will refrain from commenting for the moment,” said his lawyers.
The owner-occupant says he is going through a “torture”
Just before the holidays, the legal proceedings initiated by the owner of the building adjacent to La Tulipe were postponed until March. The entrepreneur Pierre-Yves Beaudoin, who has been fighting in court for more than a year, demands that those in charge of the cultural hotspot on avenue Papineau “stop emitting noise that can be heard outside the building. ‘establishment’. Overview of the injunction request, that Press was able to consult for the first time.
“No intention to act”
Pierre-Yves Beaudoin deplores the “inertia” of the owners of the performance hall to comply with their “legal obligations”, despite a slew of complaints and fines since 2017. They persist “in not respecting the Noise regulation with regard to the Plateau-Mont-Royal territory, and not to put in place adequate measures to manage the noise generated by La Tulipe and its customers ”, we can read in the request for injunction amended dated October 15, 2021. The municipal by-law prohibits noise “when it is heard outside or in another room, whatever its destination, than the one from which it comes”. Mr. Beaudoin maintains that the operator Cabaret Music-Hall (CMH), owned by La Compagnie Larivée, Cabot et Champagne (CLCC or La Tribu), “has abused [sa] patience and [sa] good faith in [le] suggesting that the problem would be resolved when in fact, the latter had no intention of acting quickly ”.
“Disguised expropriation”
A favorable response from the Court to the request for an interlocutory and permanent injunction, warn the lawyers of La Tulipe, would result in “the complete and absolute prohibition of legal commercial activity” of the establishment and would be assimilated “to an expropriation. disguised and / or real confiscation of property ”. In light of several sound tests, the parties agree on the fact that the decibels perceived in Mr. Beaudoin’s building exceed the regulatory limits. However, the performance hall, located for nearly 20 years in the former Théâtre des Variétés by Gilles Latulippe, has an “acquired right”, the defendants argue. In addition, there are “reasonable alternatives to mitigate the alleged disadvantages, namely the reduction of decibels emitted by La Tulipe and soundproofing work”. Several lawyers joined by Press did not want to comment on these issues, either to avoid conflicts of interest or by ignorance of the file. “In matters of nuisance, noise, public safety or pollution, there are no acquired rights, however notes Jean Hétu, professor specializing in municipal law at the University of Montreal. The regulation applies even if you started an activity before it came into force. ”
” Knowingly ”
Luc Cabot, one of the four partners of Compagnie Larivée, Cabot, Champagne, notes that Pierre-Yves Beaudoin has deliberately moved into a building which “has never been used for residential purposes for the good reason that it is ‘is in many respects not adequately soundproofed or divided to allow an individual to fit comfortably ”. Pierre-Yves Beaudoin bought the building “with full knowledge of the facts, knowing full well that he would have La Tulipe as a neighbor, that he would share a party wall and that he would have to suffer the normal inconveniences of this type. neighborhood, ”he said in an affidavit filed in court. “It is obvious that if you live on the edge of Taschereau Boulevard in Longueuil, you will not have the same peace of mind as with your boyfriend in Saint-Ambroise-de-Kildare, illustrates Professor Jean Hétu. But in and of itself, you cannot argue that you got there first, although that may have to do with the amount of damage. The judge may say, “Take some of your trouble. “”
Delayed work
In 2019, to reduce harmful noise “in good faith”, managers of La Tulipe notably removed sprinkler pipes in the party wall and installed dampers on the audio system. Soundproofing work must also be carried out soon. This important step, it is explained, was delayed due to permit applications – La Tulipe is classified as a heritage building – as well as COVID-19. In all cases, the corrective work “will not make it possible to stem the problem and allow the Defendant to comply with the By-law” on noise, warns Mr. Beaudoin, reluctant to make changes that would target his accommodation. “My right is ultimate, it is recognized, my right of property, he maintained in interrogation, January 7, 2021. I have no business having walls, to have walls imposed on me by your client. According to La Tulipe’s lawyers, the plaintiff did nothing to “mitigate his alleged damages”. His behavior “is abusive, imbued with bad faith and contrary to that of a reasonable person in the circumstances”, they write.
“Chronic fatigue”
Pierre-Yves Beaudoin deplores that noise “persistent and invasive negatively affects [sa] health and [sa] quality of life ”as well as those of the residents of its building. In his court application, he claims $ 40,000 for “troubles and inconveniences”. Since moving in in August 2017, he says he is going through “torture” which disrupts his professional and personal life. “I suffer from chronic fatigue problem given the significant sleep problems caused by the sounds and noises emanating from the performance hall,” he wrote in an affidavit. In two years, he notes that he has gone to La Tulipe twenty times to express his complaints. In the evidence, two of his tenants also mentioned “major” inconveniences caused by the noise emanating from the performance hall. According to the defendants’ lawyers, only Mr. Beaudoin complained directly to the managers “as to any noises that would have been made in connection with [leurs] Commercial activities “.
The hearings around the injunction request against La Tulipe have been postponed to March 16, 17 and 18. In the meantime, the City has announced its desire to participate in the discussions, even if it is not a party to the dispute. This case is being carried out in parallel with the legal proceedings of the Plateau-Mont-Royal borough against Pierre-Yves Beaudoin for “illegal use” of his home.